With GPS technology becoming better, smaller, and cheaper, law enforcement has turned to it more and more as a way of tracking criminal suspects. Of course, police have used tracking technology, from old-fashioned feet on the ground to radio transmitters, for decades. GPS devices that can be attached to almost any object present one of the newer, more accurate ways of tracking criminal suspects. As with other methods police have used before it, GPS tracking presents questions about how far the police can go in monitoring a person’s movement and location before they run into an individual’s legal protections.
Police use GPS tracking devices in a couple of different scenarios. First, police use GPS devices with bait objects to catch people who attempt to steal the objects. Police also use GPS devices as a surveillance tool, tracking the movements of suspected criminals over time. I’ll address some of the legal issues raised by both scenarios.
Bait-bike programs have taken off around the country over the last several years. Here in Philadelphia, the University of Pennsylvania recently began a bait-bike program of its own to crack down on bike thefts on campus. If you’re unfamiliar with these programs, they are police-run operations in which the police place a GPS tracking device on a bike, put the bike out in public in a spot they believe likely to draw the attention of bike thieves, then use the GPS device to track down the thief if and when it is stolen. These bait-bike programs have proven to be very popular with law enforcement, though police have also used this baiting method with a number of other theft-prone objects, from cars to prescription medication bottles.
The most common legal question people have with these bait programs is whether they constitute “entrapment.” Entrapment is a legal defense that some criminal defendants can use when they are able to show that law enforcement officials induced them to commit the crime. Courts typically apply this defense very narrowly. It’s not enough that the police presented a defendant with the opportunity to commit the crime, they must have taken some steps to persuade or coerce the defendant into committing the crime. In the case of a typical bait program, it's unlikely the actions of the police in placing objects in public would be considered entrapment. If however, police went further in trying to persuade a person to take the bait, such as by offering the person money or threatening them with physical harm, the defendant would have a better entrapment argument. For the most part, however, police bait programs have been considered a legal practice.
A separate set of legal issues is raised when the police want to use a GPS device to track the movements of a suspected criminal over time. Police have used GPS devices for this purpose in the past, attaching GPS devices to a suspect’s vehicle or other belongings to track their movement. This is a kind of digital surveillance technique, and surveillance of any kind has always raised constitutional concerns.
The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures by the government, generally requiring authorities to obtain a warrant based on probable cause before conducting a search or seizure of an individual or their property. Some types of surveillance, like wiretapping, have been determined to be searches for purposes of the Fourth Amendment, generally requiring law enforcement to obtain a warrant before conducting the surveillance. Other types of surveillance, like installing and monitoring a basic radio transmitter in public, have not triggered the need for a warrant.
With the heightened use of GPS tracking devices over the last decade or so, there was an open question about where the use of these devices for surveillance might fall on the constitutional scale. The U.S. Supreme Court weighed in on the subject in 2012 with the case of U.S. v. Jones. In that case, the police were tracking a drug trafficking suspect with a GPS device they had attached to the suspect’s car. The police initially had a warrant to do this, but the warrant had already expired by the time the police began monitoring the GPS device. Though the defendant was convicted, he appealed his conviction on the grounds that the use of the GPS device outside of the term of the warrant violated the Fourth Amendment. The Supreme Court unanimously agreed, holding that the attachment of the GPS device to the suspect’s car was a search for purposes of the Fourth Amendment requiring a warrant.
Interestingly, the Court’s majority opinion in Jones is pretty narrow and can be read to apply only to those situations in which law enforcement officials actively place a GPS device on a suspect or their property. The scope of the opinion is not broad enough to address those situations in which law enforcement uses GPS data from a third-party source, like the onboard GPS system in a suspect’s car or a suspect’s cell phone. However, another recent Supreme Court case, Riley v. California, may have hinted at the way in which the Court would lean in such a case. In Riley, the Court held that police generally cannot search the data on a person’s cell phone without a warrant, even after the person has been arrested. Given the Court’s decision, it's at least arguable that the police should be required to obtain a warrant to get access to GPS data of a suspect regardless of whether that data comes from a device they’ve placed on the suspect or one the suspect themselves already had.
Technology typically changes ahead of the law, but given recent Supreme Court rulings, we now have a clearer picture of just how far law enforcement can go in using GPS devices and data to track a criminal suspect. The use of GPS-enabled bait programs likely will continue to be a favored law enforcement tool for combating certain types of theft, but law enforcement agencies will need to be more diligent before using GPS devices and data to track the movements of criminal suspects.
If you have been charged with a federal crime and are looking for a tough defense lawyer, please contact the Law Offices of Hope Lefeber for a free initial consultation. I have over 30 years of experience defending clients from across the Philadelphia area and am ready to fight for you too.